Second Circuit says employee’s Facebook criticism of employer and colleague’s “like” are protected activity under NLRB, LeClair Ryan attorney Carmon Harvey writes in recent blog post
Philadelphia (11/9/15) — Companies may not “like” a court’s recent affirmation of a National Labor Relations Board ruling that appears to expand employees’ rights to vent on social media, but they need to understand how to make sure they do not run afoul of the NLRA (National Labor Relations Act), says Carmon Harvey, a shareholder in national law firm LeClairRyan’s Philadelphia office.
The case–Three D, LLC d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board, Case No. 14-3284–involved two employees at Watertown, Connecticut’s Triple Play Bar and Grille who were terminated after one complained in a Facebook post about the establishment’s income tax-withholding policies and the second “liked” the post. An NLRB law judge found, and the Second Circuit Court agreed, that the Facebook activity in this case was “concerted” because it involved multiple employees and related to workplace complaints, and thus qualified for protection under the NLRA. Harvey was not involved with the case.
“It didn’t matter that there was no union to be found on the premises. The NLRA protects concerted activity by all employees, even those unaffiliated with any union,” writes Harvey in a recent blog post at EPLI Risk, which focuses on employment practices liability insurance, Directors and Officers liability insurance, and related issues. “It also didn’t matter that customers could see the public employer-bashing, because the content wasn’t directed at customers, was not defamatory and did not tend to disparage the employer’s brand, products or services. This meant that their subsequent terminations were a big NLRA ‘no-no.’”
To top it off, the court also affirmed the NLRB’s ruling that the employer’s expansive Internet and social media policy went too far, unlawfully prohibiting activity protected under the NLRA.
Although the Second Circuit declined to make the Summary Order precedential, given the recent rulings, Harvey advises businesses whose employees have taken to the web to air grievances to avoid overreacting, “count to 10, take a deep breath” and contact their employment counsel for guidance.
“It very well may be the case that your employee crossed the line and you’ll get the ‘(Y)’ to give them the boot,” she writes. “But given the NLRB’s relentless pursuit of what it perceives as overreaching by employers, it’s better to be ‘safe’ than hit into a triple play.”
To read the full blog post, visit: http://eplirisk.com/like-it-or-not-its-protected-activity-under-the-nlra/
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